Financial Planning Tool For Nursing Home Residents<\/strong><\/p>\n Bethlehem, Pa. —\u00a0 The U.S. 3rd<\/sup> Circuit Court of Appeals this month issued a precedent-setting ruling to uphold a vital financial planning measure used by nursing home residents and their families, citing in part a 2001 case won by Bethlehem elder care attorney Stanley. M. Vasiliadis.<\/p>\n The majority decision in \u201cZahner vs. the Pennsylvania Department of Human Services (DHS)\u201d overturns a District Court ruling and thwarts efforts by the department to prevent seniors from using a planning strategy, \u201cgift & annuity,\u201d as part of their financial planning process, despite existing federal law protecting those rights, Vasiliadis said.<\/p>\n Vasiliadis participated in writing and submitting a \u201cfriend of the court\u201d brief on behalf of the National Academy of Elder Law Attorneys in support of Donna Claypool and Connie Saner. In finding in their favor, the Court cited a 2001 federal court ruling in Vasiliadis\u2019s case, \u201cMertz vs. Houstoun<\/em>,\u201d considered a landmark case involving the use of annuities as a financial planning tool by nursing home residents.<\/p>\n This case involved the use of short-term annuities, coupled with gifting to help seniors and their family members protect financial assets that are exposed and remain at risk after having entered a nursing home. In the Zahner case, the Commonwealth argued that using annuities with pay-out terms substantially shorter than the purchaser\u2019s actuarial life expectancy was prohibited under Medicaid law.<\/p>\n DHS attorneys argued that the annuities used in this case were \u201csham transactions\u201d with no economic value other than to enable persons to qualify for Medicaid without first paying over all of their assets to a nursing home. The Circuit Court ruled that a Medicaid planning motive does not prohibit the use of short-term annuities provided all of the legal requirements for their use are met, as occurred in this case.<\/p>\n Citing Mertz and subsequent cases, Chief Judge Theodore McKee and Judge Dolores Sloviter reaffirmed that it is not the court\u2019s role to rewrite federal legislation that has been addressed several times by Congress since the original passage of the law.\u00a0 Judge Marjorie Rendell dissented.<\/p>\n \u201cIt is not the role of the court to compensate for an apparent legislative oversight by effectively rewriting a law to comport with one of the perceived or presumed purposes motivating its enactment,\u201d they quoted from Mertz. In addition, they added, \u201cAlthough we are sympathetic to the concerns the dissent and DHS outline, Congress must resolve them. Absent legislative change, it is clear that \u201cCongress has not revised the Medicaid statute to foreclose this option.\u201d<\/p><\/blockquote>\n Vasiliadis, president of the Pennsylvania Association of Elder Law Attorneys and a nationally recognized expert on elder law, agrees that the unusually short term of the annuities is not a factor. He also pointed out that the total amount of the annuity payments are applied toward the cost of the person\u2019s care.\u00a0 They create a temporary revenue stream to cover the costs of nursing home care between the date of a person\u2019s gift and when Medicaid takes over those payments.<\/p>\n \u201cIt is a planning measure that is appropriate for use by people who are already in a nursing home. It is not too late even then to protect your assets,\u201d said Vasiliadis, a past chairman of the Pennsylvania Bar Association\u2019s Elder Law Section.\u00a0 \u201cThis strategy particularly helps people of more modest means. Many families of nursing home residents believe it is too late to protect that person\u2019s assets and nursing homes often falsely support that belief.\u201d<\/p><\/blockquote>\n \u201cEssentially what they are saying is that \u2018if you play by the rules we are not going to penalize you.\u2019 The intent of the laws is what was written by Congress,\u201d Vasiliadis added. \u201cCongress has had plenty of opportunities to change this, but it hasn\u2019t. It obviously intended to permit the use of annuities.<\/p>\n A frequent speaker on elder law and estate planning issues, Vasiliadis has lectured to lawyers on behalf of the National Academy of Elder Law Attorneys.\u00a0 He regularly presents programs and authors articles for Pennsylvania attorneys as a faculty member of the Pennsylvania Bar Institute, the education arm of the Pennsylvania Bar Association.<\/p>\n Vasiliadis currently serves as President of the Pennsylvania Association of Elder Law attorneys and recently served as chair of the Pennsylvania Bar Association\u2019s Elder Law Section. He also maintains professional affiliations with the National Academy of Elder Law Attorneys, the Academy of Special Needs Planners, and with local Bar Associations and Estate Planning Councils.<\/p>\n Active in the community, Vasiliadis has served as president, director and member civic and charitable organizations, including the Chamber of Commerce, YMCA, Rotary and Visual Impairment and Blindness Services of Northampton County Inc.<\/p>\n Vasiliadis earned an undergraduate degree from Lehigh University and a law degree from Temple University.\u00a0 He is a Board-Certified Elder Law attorney as accredited by the Pennsylvania Supreme Court.
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